Bettolo v. Safeway Stores, Inc.

NOURSE, P. J.

Plaintiff sued for damages for false imprisonment and had a verdict for $1500 against all the defendants. Since there was no evidence even remotely connecting the defendant Morelli with the incident, the trial court granted him a new trial. The other defendants have appealed from the judgment on the verdict.

Plaintiff entered a store operated by the corporation in South San Francisco, gathered some groceries from the shelves, which he put in a carrying bag, and some candy, which he placed in his overcoat pocket. He then went to the checking stand where he exhibited the groceries and paid for them. Two employees had seen him take the candy, and when defendant Johnson learned that it had not been paid for, he followed the plaintiff to the sidewalk and forced him to return to the store. There he was searched, but no candy was found; but it was discovered later among some vegetables at a counter where plaintiff had stood ju:4 ’ ' leaving the store. Plaintiff was detained about tu < ■ k; minutes and then permitted to leave. No physi k vioL-m-- or injury is charged; the claim for damages rests ,">-k u,»<>n the detention in the store. These facts all stand uncontradicted. Plaintiff did not deny that he had taken the candy, nor that he had been warned to stay away from the store because he had been seen taking groceries on anoi her occasion.

The appellants have advanced five separate grounds for reversal, but, for the sake o.i brevity, we will limit our consideration to these tv,. a, denial to them of the right to defend on the ff,;«mm L rrjbable cause, and the excessive damages.

The ti ¿1 com.: .ktrucfed the jury that it should disregard any evidence tending to prove probable cause, and that such defense was not applicable in actions for false imprisonment where exemplary damages were not asked. The instruction was error and ¡palpably prejudicial. Any person may make an arrest for5 a misdemeanor committed in his presence. (Sec. 837, Peri. Code.) The owner of property may, for the purpose of pirotecting it, restrain, for a reasonable time and for the puripose of investigation, one whom he

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has reasonable and probable cause for believing has interfered with or stolen it.

(Collyer